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June 2, 2009

Seventh Circuit resists extending Second Amendment to the states

The Seventh Circuit (per Judge Easterbrook) today ruled that, in light of existing Supreme Court precedent, the Second Amendment is not applicable to the states in NRA v. City of Chicago, No. 08-4241 (7th Cir. June 2, 2009) (available here). Here are just a a few of the many intriguing passages with cite omitted) from an amusing (and quixotic?) ruling:

Thus far neither the third nor the seventh amendment has been applied to the states — nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the Court’s selective (and subjective) approach to incorporation is hard to predict....

It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868. Blackstone also thought determinate criminal sentences (e.g., 25 years, neither more nor less, for robbing a post office) a vital guarantee of liberty. That’s not a plausible description of American constitutional law....

Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety — whether guns deter or facilitate crime is an empirical question — but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

[T]he municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

What do you think about the argument that if the Second Amendment is not applicable to the states (by way of incorporation), then it will essentially be a useless right? In other words, the only places that the right to bear arms would not be potentially be infringed would be on Federal property, where a minute amount of people actually live or visit regularly.

Moreover, I read some of the precedent on which the 7th relied and I took from them that the right to bear arms was not a right created by the 2nd Amendment, but one enshrined by it. That the right pre-existed the Constitution. So, if the right pre-existed the Constitution and is enshrined by the 2nd Amendment, but can then be eviscerated by the states, does it actually remain a right?

Well, in the original conception none of the Bill of Rights was applicable to the states. It was a limitation on the Federal government only. The question is whether the Fourteenth Amendment was intended to incorporate all of those rights, some of those rights, or even (in some people's view) none of them. Current precedent is a mixed bag, which at least suggests it is a close question.

If the Easterbrook opinion stands, it certainly does not make the Second Amendment a useless right. It simply remains what it always was—a limitation on the ability of the Federal government to oppress unwilling states.

The purpose of the Second Amendment was to protect a right of the people from infringement by the new federal government. The people as a political community were guaranteed their right to continue providing militia service, a well regulated militia being necessary to their security. (The body of the people serving in the militia were said to "bear arms.") To make the Second Amendment applicable against the states, which maintained the militias, would be to turn the amendment's intent upside down. (By Leif, an "etc.")

Posted by: Leif Rakur | Jun 3, 2009 2:11:18 PM

Mark the NRA will win against the city of Chicago when it reaches the supreme court.I should say the citizens who want to excercise their 2A rights will win!!

Posted by: Anon | Jun 3, 2009 7:06:28 PM

SCOTUS won't hear it.

Posted by: Mike | Jun 9, 2009 9:53:47 AM

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